An Interesting Way to Do It


When I saw this story:

The fallout from severe layoffs at the Orleans Parish public defender’s office came to an early head Friday inside a criminal courtroom. After a hearing in which Chief Public Defender Derwyn Bunton faced a litany of questions about his budget woes, Judge Arthur Hunter said he would farm out dozens of indigent cases to private lawyers.

I thought, “that’s not right.” Crowded dockets are not the problem of the criminal-defense bar. If the state isn’t paying for the indigent to be defended, that’s the state’s problem.

The best criminal-defense lawyers can make decent livings (though nowhere near what their civil counterparts make) but most criminal-defense lawyers (including, by choice, some of the best) are eking out a living fighting the highest-stake cases. They are taking cases for too little money, either from the working poor or from the indigent-defense system, and spending many uncompensated hours helping people who couldn’t possibly afford to pay what the help is worth.

In the Houston area, the median income for criminal-defense lawyers is $73,333; for alternative-dispute-resolution lawyers, the median income it is $162,500. (PDF.) This is like trauma surgeons making less than half as much as dermatologists (which they do not). In New Orleans, the hierarchy is probably similar: criminal-defense lawyers are the redheaded stepchildren of the bar (until one is needed, natch).

These criminal-defense lawyers, already among the lowest-paid in town, shouldn’t be responsible for shouldering the burden of the growing police state.

Judge Hunter seems to have felt the same way: instead of farming the cases out to criminal-defense lawyers, he farmed them out to people with political power.

That’s probably not an approach that I would have thought of if I were the judge. It’s the government that created the problem, and I would probably have put the heat on the government through the prosecutors: we have enough lawyers for n people, so you get to bring cases against n people; any excess, you’re going to dismiss; otherwise, I’ll let them out on bail until this constitutional crisis is resolved.

We can’t afford the criminal-justice system we have now. The prison-industrial commerce is bleeding us dry. The answer to the pressure on indigent defense is not for the state to come up with more money for indigent defense, but for the state to reduce the demand for indigent defense by cutting down on elective prosecutions—prosecutions for victimless crimes and mala prohibida—and reducing punishments for necessary prosecutions.

Something has to give, and it shouldn’t be the criminal-defense bar.

I wouldn’t have thought of Hunter’s solution because I’m not a political animal, because I don’t think we should be spending more money on criminal justice, and because, from the point of view of these defendants, it’s a crappy solution. They’re getting token representation—warm bodies with law licenses—which may be worse than no representation at all. Gamso is more sanguine than I am. These defendants are screwed.

But if you think politically, and you think the state should spend its way out of a constitutional emergency, appointing bigwigs who have never been near the criminal courthouse (and who can afford to put in a few more pro bono hours) to carry part of the load is a damn good idea.


12 responses to “An Interesting Way to Do It”

  1. Now, let’s be clear. I don’t imagine these defendants will get screwed by these lawyers because I think the lawyers won’t stoop to actually trying to represent them. The ones Hunter doesn’t let off (and he’s excused at least a couple) will either exercise some public power juju to get the charges dismissed or hire them a bona fide criminal defense lawyer to actually do the case.

    The danger to the clients is real, of course, but the reality is that they’re unlikely to get screwed.

    Or maybe I’m just becoming a glass-half-full kind of guy. Nope, I checked with my wife. Not happening.

    • I’ve always found you deeply inspirational, your positivity a beaming light of liberty. I think you should head on down to NoLa and take care of these neglected souls. Bon voyage, mon frère. We will all be with you (in spirit).

    • Yeah, I got that, and I think anyone who followed the link to your blog would get that, but you’re wrong. These lawyers don’t give a damn what happens to their defendants; they’re not going to use their influence to get the charges dismissed; instead, they’re either going to resolve their cases as quickly as possible (IOW sell them down the river) or hire the cheapest possible—and therefore marginally competent—”criminal-defense lawyer” to do the job for them.

  2. Just think, where will they come up with defending lawyers for all of the proposed legislation over “Personhood” and the first degree murder cases that will be committed?? Don’t even think of using the search term “pregnancy” on Google. The Brain Police will be watching for that one. Especially here in Virginia. Oh, it’ll be a Brave New World, for sure.

  3. While Judge Hunter’s “solution” sends a far better and more important message than the usual shifting of the burden off the state and onto criminal defense lawyers, I prefer your solution of “n” number of prosecutions allowed until they are capable of satisfying their constitutional duty.

  4. It will be interesting to watch those ‘trial’ lawyers handle themselves in the crucible of criminal trial practice.

  5. Lesson One – Do not fund a government agency based upon revenues from traffic tickets if it is possible that a natural disaster will wipe out that income in one day’s destruction.Lesson Two – Do not try to replace a lost government service with free labor. Do Parish officials think that if they were unable to employ enough sanitation workers that everyone in the French Quarter would just pitch in to clean up after Mardi Gras?

    • Why do I now have an image of well-intended, hard-working Mardi Gras revelers in earth shoes picking up disembodied lace brassieres and feeling quite good about themselves?

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